1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 G&M FARMS INC., a California Case No. 1:24-cv-00213-JLT-BAM Corporation, 12 ORDER GRANTING PLAINTIFF’S Plaintiff, MOTION FOR LEAVE OF COURT TO 13 FILE AMENDED COMPLAINT v. 14 (Docs. 34, 36) E.I. du PONT, dba CORTEVA 15 AGRISCIENCE, and Does 1-50, inclusive, 16 Defendants. 17 G&M Farms Inc. (“G&M Farms”) alleges that it suffered losses caused by the application 18 of Fontelis® fungicide to its blueberry plants, including the Snow Chaser variety. Defendant 19 Corteva Agriscience LLC (incorrectly named as E.I. du Pont, dba Corteva Agriscience) removed 20 the action to this Court on February 15, 2024. (Doc. 1.) Currently before the Court is G&M 21 Farms’ motion for leave to file a second amended complaint pursuant to Federal Rule of Civil 22 Procedure 15(a)(2). (Doc. 34.) By the proposed amendment, G&M Farms seeks to remove its 23 punitive damage claim. (Id. at 2.) Defendant Corteva Agriscience LLC filed a statement of non- 24 opposition on September 13, 2024.1 (Doc. 39.) The time for any opposition to the motion has 25

26 1 The first amended complaint names E.I. du Pont and Corteva Agriscience as defendants, (see Doc. 12 at 2), as does the proposed amended complaint, (see Doc. 34-4 at 2). Defendants EIDP, Inc. and Corteva 27 Agriscience LLC contend they were incorrectly named as E.I. du Pont and Corteva Agriscience. (See Doc. 25 at 2 n.1.) EIDP, Inc. also contends it is not a proper party in interest in this case. (Doc. 29 at 1 28 n.1.) 1 expired. L.R. 230(c). 2 In the absence of opposition, the matter is deemed submitted on the current record. L.R. 3 230(g). Having considered the moving papers, along with the record in this case, G&M Farms’ 4 motion for leave to file an amended complaint will be GRANTED. 5 DISCUSSION 6 Federal Rule of Civil Procedure 15 is the appropriate mechanism where a plaintiff seeks 7 to eliminate one or more, but less than all, of its claims.2 See Hells Canyon Preservation Council 8 v. U.S. Forest Service, 403 F.3d 683, 687-88 (9th Cir. 2005) (“Federal Rule of Civil Procedure 9 15(a) is the appropriate mechanism where a plaintiff desires to eliminate an issue, or one or more 10 but less than all of several claims, but without dismissing as to any of the defendants.”) 11 (quotations and modification omitted); United States v. Hill, No. 2:17-cv-608-MCE-EFB, 2020 12 WL 5502327, at *2 (E.D. Cal. Sept. 11, 2020), report and recommendation adopted, No. 2:17-cv- 13 00608-MCE-EFB, 2020 WL 6158232 (E.D. Cal. Oct. 21, 2020) (“[A] party is required to seek 14 leave of the court to amend the complaint to eliminate one or more, but less than all, of its claims 15 under Rule 15.”). Rule 15(a) provides that a court “should freely give leave [to amend] when 16 justice so requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has stated:

17 [i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies 18 by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —the leave sought 19 should, as the rules require, be “freely given.” 20 Foman v. Davis, 371 U.S. 178, 182 (1962). The intent of the rule is to “facilitate decision on the 21 merits, rather than on the pleadings or technicalities.” Chudacoff v. Univ. Med. Center of S. Nev., 22 649 F.3d 1143, 1152 (9th Cir. 2011). Consequently, the “policy of favoring amendments to 23 pleadings should be applied with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 24 (9th Cir. 1981). 25

26 2 Rule 15 also governs where, as here, the deadline for amendment in the pretrial scheduling order had yet to pass at the time the motion for leave to amend was filed. See Bencomo v. County of Sacramento, No. 27 2:23-cv-00440-DAD-JDP, 2024 WL 382381, at *1 (E.D. Cal. Jan. 31, 2024) (“Rule 15 of the Federal Rules of Civil Procedure governs amendments to pleadings when the deadline for amendments in the 28 pretrial scheduling order had yet to pass at the time the motion for leave to amend was filed . . . .”). 1 Courts consider five factors in determining whether justice requires allowing amendment 2 under Rule 15(a): “bad faith, undue delay, prejudice to the opposing party, futility of 3 amendment, and whether the plaintiff has previously amended the complaint.” Johnson v. 4 Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (citation omitted); Bonin v. Calderon, 59 F.3d 815, 5 845 (9th Cir. 1995) (citing Western Shoshone Nat’l Council v. Molini, 951 F.2d 200, 204 (9th 6 Cir. 1991)). These factors are not of equal weight as prejudice to the opposing party has long 7 been held to be the most critical factor in determining whether to grant leave to amend. 8 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (“As this circuit and 9 others have held, it is the consideration of prejudice to the opposing party that carries the greatest 10 weight”); Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (“Prejudice to the 11 opposing party is the most important factor.”). Absent prejudice, or a strong showing of any of 12 the remaining factors, a presumption exists under Rule 15(a) in favor of granting leave to amend. 13 Eminence Capital, 316 F.3d at 1052. 14 G&M Farms seeks leave to amend the complaint to remove the punitive damage claim. 15 (Doc. 34-1 at 2.) In considering the relevant factors, the Court finds that leave to file an 16 amended complaint should be granted. Although G&M Farms has previously amended its 17 complaint, the remaining factors weigh in favor of granting leave to amend. Critically, there will 18 be little prejudice to defendants in permitting the amendment as it will remove G&M Farms’ 19 punitive damage claim. Further, defendants do not oppose the motion. Second, there is no 20 indication of undue delay. G&M Farms submitted its motion for leave to amend prior to the 21 September 6, 2024 deadline for amendment of pleadings. (See Docs. 27, 34.) Third, amendment 22 is not futile. As stated, the amendment will remove the punitive damage claim. Fourth, and 23 finally, there is no indication that the amendment is brought in bad faith. G&M Farms agreed to 24 remove the punitive damage claim to avoid unnecessary expenses and to conserve judicial time 25 because defendants had advised that “they were going to bring motions to remove the punitive 26 damage claim.” (Doc. 34-1 at 2.) 27 The Court notes that G&M Farms filed a second amended complaint on August 28, 2024. 28 (Doc. 33.) In lieu of striking that pleading, G&M Farms will be granted leave to file its 1 Proposed Second Amended Complaint (Doc. 34-4), attached as Exhibit 1 to the motion, as a 2 “Third Amended Complaint.” 3 CONCLUSION AND ORDER 4 For the reasons discussed above, IT IS HEREBY ORDERED that: 5 1. G&M Farms’ motion for leave of court to file an amended complaint (Doc. 34) is 6 GRANTED. 7 2. Within five (5) court days, G&M Farms shall file the Proposed Second Amended 8 Complaint, a copy of which was attached as Exhibit 1 to motion, as its Third Amended 9 Complaint. The pleading must be clearly titled “Third Amended Complaint.” 10 3. As necessary, defendants shall file an answer or other responsive pleading in 11 compliance with the Federal Rules of Civil Procedure and any relevant Local Rules following 12 service of the Third Amended Complaint. 13

IT IS SO ORDERED.

15 Dated: September 30, 2024 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

18 19 20 21 22 23 24 25 26 27 28